TOC Feature: 377A – To prevent what harm?

Curiously, the Penal Code (Amendment) Bill of 2007, proclaimed as the result of only the second comprehensive review of Singapore’s 136 year old criminal code, is likely to be remembered more for what it did not do than for what it did.

To be sure, there is much reform in the Bill, and much that is uncontroversially needed. Many of the changes are technical in nature and would require some acquaintance with the intricacies of criminal law to appreciate.

Not so the issue of whether consensual gay sexual activity between adults ought to continue to be criminalized. When the proposed amendments were unveiled in November last year, few other matters in the document so dominated public discourse. Yet after many months, much feedback and careful deliberation, nothing has changed.

The now famous, or infamous, section 377A which prohibits “gross indecency” between men, is to be preserved. The press release in conjunction with the introduction of the Bill contains no more than two cryptic sentences explaining why this position was finally taken.

How is the line to be drawn between what is a crime and what is not? Criminal lawyers speak of the two elements of harm and culpability. We are concerned here only with the first - criminal activity must entail some sort of recognizable and more or less tangible harm to others. The criminal law declares it to be a crime, as notice to all that if anyone wishes nonetheless to engage in them, there will be consequences. The rules of criminal procedure and evidence prescribe the manner in which someone is to be prosecuted and found guilty of a crime.

Ultimately, the rules of sentencing and punishment govern how the criminal offender is to be punished. The reason for criminal punishment has been variously explained as incapacitation, deterrence and rehabilitation of the offender, deterrence of would-be offenders, and satisfaction of the victim and of the public.

Does 377A match up?

Just how far 377A is from this model of criminality is striking.

The government has been strangely silent about the harm that 377A is intended to prevent. Indeed consistent statements over a number of years from the highest officials of the land lead any reasonable observer to think that the government no longer believes, if indeed it did before, that the sort of activity contemplated by 377A is harmful at all. If corroboration were required, it lies in the repeated assurances of the government that 377A will not be enforced – apparently because there is no harm to be prevented, no offender to be rehabilitated, no potential offender to be deterred, and no victim to be satisfied.

One might, of course, disagree with the government’s position on the harmfulness of 377A activity, but once that position is taken, how can it be right for 377A activity to remain a crime? The fact that “public feedback” had been “emotional, divided and strongly expressed” is interesting, but surely not the end of the matter – for informed lawmaking must critically examine why there is such a difference of opinion.

Those who seek the repeal of 377A have rather less to explain – if it is the official position that the activity concerned is not harmful, or sufficiently harmful to require penal consequences, it does seem to follow that it ought no longer to be a crime. Those who advocate the retention of 377A are in a more difficult position, for any convincing argument for their view must rest on a belief which is contrary to the implicit official one – that 377A activity does indeed involve a significant enough harm. The government’s decision to retain 377A in the light of its rejection of the principle argument for its retention – that of harm to the community – is surprising.

It was not retained because it has any merit in itself, or because the government buys into the arguments of those seeking its retention. It was left in the Penal Code because of a desire not to offend those who seek its retention. Yet the management of activity which does not really harm but merely offend ought surely to involve a balance of interests – between the interests of those who want to engage in the activity and those who are offended by others engaging in it.

How do the advocates of retention benefit by leaving 377A in the books? Not much at all – for the “prohibition” will not be enforced, people will continue to engage that activity and they will, presumably, continue to be offended.

The power of symbolism?

But would the mere existence of 377A not be a needed symbol, in their view, of disapproval?

Perhaps, but what a tattered and confused symbol it will be – there is not to be, and has never been, such a symbol for “gross indecency” between two women, nor is there any for “gross indecency” between a man and another man who has been sexually reassigned surgically as a woman, and what one might have thought to be a far less controversial symbol of “family values” – the offence of enticing a married woman in order to commit adultery with her – is to be repealed, apparently without the objection of those who argued for the retention of 377A.

On the other side of the equation, how does retention of 377A harm those who might engage in activity “prohibited” by that provision? It is true that there are these assurances of non-enforcement, but this is not the same as a repeal of 377A. The present policy of non-enforcement can be changed, and changed without notice for whatever reason the government of the day deems fit.

More than that, while 377A may not be enforced, discriminatory policies can potentially be built on the logic of its existence – thus public “entertainment” licences can conceivably be denied to speakers who are thought to be sympathetic to 377A activity, on the basis that it is, after all, still criminal. Societies seeking the repeal of 377A can be denied registration on a similar ground.

The balance of interests that is struck by the retention of 377A is not a happy one. In order to spare the feelings of those who object to such activity, which the government acknowledges to be insufficiently harmful to be enforced, 377A is to remain, with the potential to be used without notice, and to be invoked as the basis of other discriminatory policies.

The government displays much wisdom in letting “the situation evolve”, but situations like these do not evolve by the force of nature. It is trite that in a democracy conflicting ideas and those who hold them contend for the community’s acceptance. The role of government, where no sufficient harm is involved, must be to be neutral, allowing both parties to try to persuade the public of their views. Neutrality is not achieved by retaining 377A, but by its repeal.

Employment of the criminal law to prohibit activity which the government does not really think ought to be prohibited, on the sole basis that “the majority” wants it to be prohibited, is fraught with danger. The moral force of the criminal law is blunted if there are crimes which are, the government assures the public, never to be enforced, and its “perpetrators” never brought to court and punished.

It demeans the individual to have his behaviour, which is presumably important to him and which the government does not think is harmful to society, to be labeled a crime, and him a criminal. The criminal laws are the ground rules of our society and if it is to be accorded the respect it deserves, it must be reserved for conduct which the government considers to be clearly harmful to society.

About the author: Professor Michael Hor teaches at the National University of Singapore Faculty of Law. His areas of research include criminal law, evidence and constitutional law. Professor Hor contributed this article to TOC in his personal capacity.

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